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Will a Warhol lawsuit alter the US copyright law?

Andy Warhol is known as one of the giants of Pop Art. The American artist, who died in 1987, left behind a legacy of paintings that made use of images that the public encountered on a daily basis transformed into larger-than-life icons, such as the Campbell Soup can, Marilyn Monroe, Elizabeth Taylor, James Dean, and, yes, Prince.

The story, as all stories begin, starts out as a simple one: Vanity Fair magazine licensed a photograph of Prince Rogers Nelson, better known as the musician Prince, to be used as a reference image for an artwork.

The photograph was taken in 1981, before the singer-songwriter had risen to the heights of fame, by musician and photographer Lynn Goldsmith for Newsweek.

Goldsmith was paid a $400 fee by Vanity Fair in 1984, and the magazine commissioned Andy Warhol to produce artwork based on Goldsmith’s photo of Prince, around the time “Purple Rain” was storming the charts.

Warhol made a series of silk screens off of Goldsmith’s photo, 16 in total, but only one was used in the VF article (“Purple Prince”). Goldsmith was credited along with Warhol as per the licensing agreement.

Years later in 2016, when Prince died, Vanity Fair wanted to run the Warhol image again, and found out that there were more images than the original one that they had used in 1984. So they picked a different image (“Orange Prince”) and used it, paying the estate of Andy Warhol $10,250, while making no mention of Goldsmith nor paying her any royalties.

According to Goldsmith, it was the Andy Warhol Foundation for the Visual Arts (AWF) that started the legal battle, prompting her to file a countersuit: “I know that some people think that I started this, and I’m trying to make money. That’s ridiculous––the Warhol Foundation sued me first for my own copyrighted photograph.”

The parties did not want a standard trial but instead opted for a summary judgement, “a judgement entered by a court for one party and against another party without a full trial”. 

The presiding New York State District Judge for the case John G Koetl rejected Goldsmith’s argument and ruled in favour of the Andy Warhol foundation. Koetl said that while Warhol did base his painting on Goldsmith’s photograph, he “removed nearly all the photograph’s protectible [sic] elements.”

According to Koetl, the Warhol painting offered a new vision of Prince to the viewer: “The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure….The humanity Prince embodies in Goldsmith’s photograph is gone.

“Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.”

CBS News
reports that while Koetl considered Warhol’s painting within the scope of “fair use”, a federal appeals court reversed the decision, saying that Warhol’s Prince series kept the essential elements of Goldsmith’s photograph without significantly adding to or altering them, thus not really qualifying for “fair use.”

CBS News notes “To qualify as transformative, a new work must have a “fundamentally different and new artistic purpose and character,” [the federal appeals court] said.”

Judge Gerard E. Lynch of the Second Circuit, which reversed Koetl’s judgement, wrote that “The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”

According to Lynch, Warhol’s Prince Series clearly derived from Goldsmith’s photograph, and were not transformative enough to qualify for the “fair use” defense because his work “retains the essential elements of the Goldsmith photograph without significantly adding to or altering those elements.” 

The AWF says Lynch’s argument is a fallacy, if a judge were not to play art critic, then Lynch should also refrain from stating his opinion.

“Warhol, who died in 1987, did not make fair use of Lynn Goldsmith’s photograph under copyright law, according to the brief filed by the US Department of Justice’s Solicitor General and the US Copyright Office,” Reuters

Peta Pixel
explains further: “The United States Copyright Office has submitted an opinion to the Supreme Court that argues Andy Warhol’s use of Lynn Goldsmith’s photo of Prince was not fair use, sharing sentiments with opinions sent by the [National Press Photographers Association] NPPA and [American Society of Media Photographers] ASMP.”

Writing in
The Atlantic, defending the broad definition of fair use, media attorney, filmmaker, and professor Paul Szynol says “To a large degree, fair use lets [ideas remain free] by allowing not only ideas but their expressions to meld, too. It’s not just Warhol and Prince.

“Fair use is the doctrine that allows us to record broadcast materials, permits filmmakers to incorporate clips of existing materials into their projects, and makes it possible for Google to show thumbnails of images when we do a search. Without it, our cultural experience would be markedly different, and certainly not better.”

Szynol summarises fair use as “the legal mechanism through which pieces of copyrighted materials move from one work to another without the owner’s imprimatur; it’s how the legal system allows us to stand on the shoulders of giants when we don’t have the money to pay the enterprising copyright owner for the privilege.

It’s the legal vaccine that protects the flow of creativity, high and low.”

The Supreme Court will hear about the case, Andy Warhol Foundation for the Visual Arts Inc v. Goldsmith, U.S. Supreme Court, No. 21-869, on October 12, 2022. The repercussions of the USA’s highest court’s decision will be widely felt.

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